MUHAMMAD AZAM KHAN, J.--- The appellants, namely, Rehman Said and Abdul Haleem sons of Hakeem Said, residents of village Alo Tehsil Takhat Bhai, District Mardan, involved in case F.I.R. 232, dated 27-3-1993 of Police Station Lundkhawar, under section 302/324/34, P.P.C., were tried by the learned Additional Sessions Judge/Judge Special Court, Mardan. Vide judgment and order, dated 12-5-1998, both the appellants, were convicted under section 302/34, P.P.C. And were sentenced to death subject to confirmation by the High Court with a fine of Rs,50,000 each or in default to suffer two years' S.I. Each. Out of the fine if recovered, a sum of Rs,30,000 shall be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. They were further convicted under section 324/34, P.P.C. And sentenced to undergo 7 years' R.I., each and to pay a fine of Rs,20,000 each or in default to suffer one year's S.I., each. Out of fine if recovered a sum of Rs,10,000 shall be paid to the victim Muhammad Riaz complainant as compensation under section 544-A, Cr.P.C. In case the death sentence is not confirmed and converted into life imprisonment then all the sentences shall run concurrently.
The appellants have approached this Court in appeal for setting aside their conviction and sentences while the Additional Sessions Judge has forwarded the Murder Reference No,8 of 1998 for confirmation of the death sentence. We propose to dispose of both the matters by this judgment.
2. The facts of the prosecution case briefly stated are that on 27-3-1993 the inhabitants of village Alo took the complainant Muhammad Riaz in injured condition alongwith the dead body of Banat Khan to Police Station Lundkhawar in a Datsun pick-up where at 18-00 hours the injured Muhammad Riaz reported the matter to Zainul Wahab S.-I. Wherein he stated that he alongwith his father Madad Khan and brothers Banat Khan and Zahirullah were proceeding to their house from the fields. When they reached near Khoi Danda, accused Rehman Said and Abdul Haleem were present there duly armed who started firing at them. With their fire shots he and Banat Khan deceased were hit. The complainant sustained injuries while Banat Khan died at the spot. Motive for the offence was stated to be previous blood feud.
3. Zainul Wahab S.-I. (P.W.12) after registration of the report in the shape of F.I.R. Exh.P.A. Examined the deceased and the injured and prepared their injury sheets Exh.P.H./1 and Exh.P.H. He also prepared the inquest report of the deceased Exh.P.H./2 and sent the dead body to the mortuary for post-mortem examination, while the injured was sent for medical treatment. He then proceeded to the spot, inspected it and prepared the site plan Exh.P.B. At the pointation of P.Ws. He recovered blood-stained earth from the place where the injured Muhammad Riaz was hit, vide memo. Exh.P.C.
He also took .Into possession blood-stained earth from the place where the dead body of the deceased Banat Khan was lying. The Investigating Officer also took into possession 38 crime empties of .7.62 bore Exh.P.1 from the spot and prepared memo. Exh.P.C./2. He took into possession blood-stained clothes of the deceased and injured consisting of a shirt Exh.P.2, Shalwar P.3 and white Banyan P.4 and prepared the memo. Exh.P.C./3. He recorded the statements of the P.Ws.
Under section 161, Cr.P.C., sent blood-stained articles to Forensic Science Laboratory the result whereof is Exh.P.W.6/1. He was transferred and the remaining investigation was conducted by his successor.
Mr. Ahmad Shah, S.-I. (P.W.5) on completion of the investigation submitted complete challan against the accused under section 512, Cr.P.C. On 10-12-1993. Tajbar A.S.-I. (P.W.6) received the result of Forensic Science Laboratory as Exh.P.W.6/1.
4. Dr. Gul Akbar Khan (P.W.1) conducted post-mortem examination on the dead body of Banat Khan on 28-7-1993 at 6-00 a.m. And found the following injuries on external examination:--
(1) Fire-arm injury 4 x 3" left side skull. Brain matter out. Fractured skull.
(2) Fire-arm injury entrance wound 1 x 1" right iliac region.
(3) Fire-arm exit wound 2 x 2" right lumber region. On internal examination the doctor found-- Abdomen Stomach healthy and empty. Right kidney injured. Thorax Healthy.
In the opinion of the doctor death was due to injuries to vital organ i,e, brain. Time between injuries and death was instantaneous and between death and post-mortem examination was about 12 hours.
Dr. Zahirullah (P.W.3), examined Muhammad Riaz complainant on 27-7-1993 at 10-30 p.m. And found the following:--
(1) Fire-arm inlet wound on front of right shoulder size about 1/2" x 1/2"
(2) Corresponding fire-arm exit wound on outer side of right arm fracturing bone size about 2" x 2".
(3) Fire-arm inlet wound on front of left arm size about 1/2" x 1/2".
(4) Corresponding fire-arm exit wound on outer side of left arm size about 1 x 1".
After the first aid the injured was referred to D.H.Q., Hospital, Mardan for further treatment and examination. The nature of injury No,1 was shown grievous and No,3 simple. Weapon used fire-arm.
5. After submission of the complete challan in Court and after complying the provisions of section 265-C, Cr.P.C. The appellants were formally charged to which they did not plead guilty and claimed trial. The prosecution in support of its case examined as many as 12 witnesses and after the close of the evidence the accused were examined under section 342, Cr.P.C. They stated that they have been falsely charged and are innocent. They denied to produce evidence in defence.
6. We have heard the learned counsel for the appellants (Mr. M. Zahurul Haq, Bar-at-Law) Mr. Musarratullah Khan, Assistant Advocate-General for the State and Khalid Khan, for the complainant, and have also gone through the relevant record.
7. The conviction of the appellants is based by the trial Court on the ocular account of P.W.8 Muhammad Riaz who is the brother of Banat Khan deceased corroborated by the medical evidence, the recoveries of the crime empties recovered from the spot and the matching of weapon of offence recovered from the appellants at the time of their arrest and their prolong abscondence. The trial Court, however, ignored the ocular account of P.W.9. Zafeerullah who is also the brother of the complainant.
8. It was observed by the trial Court that the testimony of Muhammad Riaz (P.W.8) is confidence inspiring as he was a natural witness to the occurrence and he received two fire-arm injuries in the same transaction in which the deceased was killed. Out of his injuries one was grievous on the front right shoulder and that he had made a prompt report in the police station himself when he carried the dead body of his deceased brother after the incident, therefore, it was held that the presence of this witness on the spot was established beyond reasonable doubt and that any discrepancy in his statement was not such which would not change the substance of the prosecution case. He was, therefore, a truthful witness as he stood all the tests of cross-examination. As far as the motive is concerned, the detail of the same is not given in the First Information Report, but at the trial it was brought on record that prior to the present occurrence Zahid another brother of the complainant was killed for which the appellant Rehman Said and his father Hakim Said were charged but they were later on acquitted.
9. The learned counsel for the appellants contended that there was a delay of about three hours in reporting the matter to the police and in view of the previous blood feud between the parties elements of the consultation cannot be excluded in the instant case. As such the appellants were entitled to clear acquittal. He further contended that Muhammad Riaz (P.W.8) though stamped with injuries was highly interested witness, therefore, his credibility was not to be accepted. The learned counsel further contended that the recovery of the crime empties from the spot would suggest that the assailants were more than two persons. As such the doubt of which will benefit the appellants, but in our view neither there is suggestion on the record that the murder of the deceased was committed by more than two appellants nor there is anything available on the record that on account of the delay in reporting the matter the charge was brought against the appellants due to consultation. Because the condition of the witness was so serious that blood was oozing from his wounds when he was taken to the police station by his relatives including his father Madad Khan who was later on abandoned by the prosecution as unnecessary. The learned counsel for the appellants in support of his contention relied on 1976 PCr.LJ 17 and PLD 1966 Lah. p.383 but in our humble view these authorities are distinguishable and they do not meet the merits of this case. He lastly candidly agreed that it is not a fit case in which death penalty could be awarded to two real brothers who were inimical to the complainant party and who were attributed the role of collective firing at the victim.
10. Learned counsel for the complainant and the learned Assistant Advocate-General for the State supported the impugned judgment in its totality.
11. Having considered the evidence of the prosecution, the statements of the accused and the record before us, the presence of P.W. Muhammad Riaz cannot be excluded from the scene of occurrence as he sustained fire-arm injuries in the same transaction and reported the matter himself before the police. It is a daylight occurrence and the parties are known to each other. The statement of P.W.8 when found credible cannot be discarded on mere presumption of certain facts as his relation with the deceased by itself was not sufficient in the absence of other cogent reasons, to exclude his evidence. We have already observed earlier in this judgment that the testimony of Muhammad Riaz P.W. Is sufficiently corroborated by the medical evidence, the, recoveries from the spot and that the empties recovered from the spot had matched with the kalashnikovs recovered from the possession of the appellants supported by their prolong abscondence.
12. We are, therefore, of the view that the appellants were correctly convicted by the trial Court vide its impugned judgment, dated 12-5-1998. However, we take a lenient view of the sentences of the appellants as both are brothers inter se and they had blood feud with the complainant party which is not denied by the prosecution, while the detail of this enmity was not given in the F.I.R.
Consequently, this appeal is partially accepted and while maintaining the conviction under section 302/34, P.P.C. Of the appellants, the sentences of death awarded to them is altered from death to life imprisonment with a fine of Rs,50,000 each in default to suffer two years' S.I. The fine, if realised, is to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. The conviction and sentences of the appellants under section 324/34, P.P.C. Is, however, upheld. -All the sentences shall run concurrently. The murder reference is answered in the negative. Benefit of section 382-B, Cr.P.C. Is also extended to the appellants.